Co-ownership - Key Cases and Legislation

Question 1

O’Malley v Breen [2021] (CoA) - JT fetures and unequal purchase contributions

Answer 1

• Haughton J:
• Wylie on Irish Land Law and Lyall on Land Law in Ireland – CL = JT presumption
• Court notes four unities present
• Endorses Wylie – Equity TC = Survivor must hold the legal estate or interest in trust for the deceased co-owner’s estate and his beneficial share under the tenancy in common will pass according to the terms of his will or on intestacy.
• Unequal purchase contributions = Resulting trusts – Stanley v Kieran = Denham J endorsed Delaney, Equity and the Law of Trusts in Ireland -The joint purchasers are presumed to take the beneficial interest in the property as tenants in common, proportionate to their respective contributions.
• Presumption may be rebutted by evidence of contrary intention, or may be displaced by a presumption of advancement.”
• Ascertain parties’ intentions
• Stack v Dowden approved in Kenny v Kenny (HC) - Baroness Hale = Financial contributions, any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses”.

Question 2

ADM Mercy plc v Bergin [2020] (HC)

Answer 2

• Allen J:
• Accepts Megarry & Wade – “A gift of lands to two or more persons in joint tenancy is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner; Principle features - The four unities and the right of survivorship; Wylie - Single owner

Question 3

Georgia v Randolph (US SC)

Answer 3

Souter J:
- No superior co-tenant – All can use property as if sole tenant (Powell) – No common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another

Question 4

O’Hea v Slattery [1894] (CoA)

Answer 4

Walker C
- Strange to exclude children where their benefit is intended – Intent must prevail
- Kenworthy v Ward – Children willed a property; Question of children as JT or TC; Page-Wood VC – Follow intent of parties; Argument that equity favours tenancies in common; Words of severance – TC but accept JT where words to create one; JT until another individual comes into the class

Question 5

L’Estrange v L’Estrange - Evidence inconsistent with JT

Answer 5

• Lord Ashbourne:
• Facts of case - Relevant
• Intention of testator
• “with power” clause inconsistent with a joint tenancy
• One large sum advanced for one child – Right to debit that sum against the child’s share but not possible if JT
• TC best way to realise testator’s intentions

Question 6

Twigg v Twigg (Evidence inconsistent with JT)

Answer 6

• Meredith J:
• Facts of case - Relevant
• ” in trust for the children of my brothers William Robert Twigg and George Despard Twigg per capita and not per stirpes. “ – No words of severance so prima facie joint tenancy
• Education bit and Endorses L’Estrange v L’Estrange

Question 7

O’Connell v Harrison (Equal contributions but still TC)

Answer 7

• Kennedy CJ:
• Robinson v Preston – Evidence may rebut JT presumption e.g. the conduct of the parties whether before or after the purchase, and statements against interest
• Deed – Beneficial TC carrying on deceased father’s business
• Deed – Investments held beneficially as TC
• Margaret’s declaration – One-half of the entire holding of shares in the National Bank was the property of her sister, Elizabeth, with her request to have them transferred into Court to the credit of the matter.

Question 8

Bull v Bull [1954] (English Court of Appeal)(Same thing in Jones v Jones)

Answer 8

• Denning LJ (Hodson LJ and Parker LJ concurring):
• Son greater part of purchase money but mother still substantial contribution to purchase price
• No intention of gift so presumption of advancement rebutted
• Equitable tenants in common – Undivided share in house in proportion to contributions made to PP
• Equity follows law so rights of equitable tenants in common same as the rights of legal tenants in common, save only for such differences as are necessarily consequent on the interest being equitable and not legal.
• Equitable TC have same rights as legal TC (S1(6) 1925 Act) had until sale - Possession and enjoyment
• Current case – Both entitled to possession and use and enjoyment of land in a proper manner so neither can turn the other out

Question 9

s30 2009 Act

Answer 9

Severance

Question 10

Williams v Hensman - Severing JT

Answer 10

• Three ways to sever a joint tenancy:
  1. Act by one of JT operating on own share may create a severance of that share (loses own right of survivorship)
  2. Mutual agreement
  3. Course of conduct to infer severance
• With conduct severance, where no express act of severance, can’t rely on intention declared behind the backs of other interested persons (Wilson v Bell and Jackson v Jackson)
• Jackson v Jackson – Where dealing done as TC, does not matter whether act done in ignorance of the existence of a joint tenancy; Rationale = JT may sever their interest and inequitable to treat as JT where parties have dealt with their interests as several

Question 11

Burgess v Rawnsley

Answer 11

• Lord Denning MR:
• Sir William Page Wood V.-C. in Williams v. Hensman – Three ways of severing JT; Course of dealing different to mutual agreement; Interpretation – Sufficient if there is a course of dealing in which one party makes clear to the other that he desires that their shares should no longer be held jointly but be held in common
• Must be made clear to the other party – Page Wood V.-C: “ it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.”
• Also sufficient if both parties conduct themselves in a way that shows an intention by both of them that there shares will be held in common and not jointly from now on – Wilson v Bell and Jackson v Jackson
• Browne LJ:
• Facts of case
• If had been enforceable agreement, then severance
• An agreement to sever in equity can be inferred from a course of dealing (see Lefroy B. in Wilson v. Bell, and Stirling J. in In re Wilks, Child v. Bulmer
• Agreement establishes that the parties no longer intend the tenancy to operate as a joint tenancy and that automatically effects a severance.

Question 12

Cawley v Lillis [2011] (HC)

Question 13

Cleaver v Mutual Reserve Life Fund

Question 14

Quinns of Baltinglass v Smith [2017] (HC)

Answer 14

• Keane J:
• Facts of case
• S31 2009 Act
• Mahon v Lawlor – Finnegan J = Wide discretion under s31 – Case by case basis
• Dunne J in Drillfix Ltd v Savage (context was an application for an order for sale in lieu of partition under the Partition Acts 1869-1876) – “whether the defendants or either of them has shown a good reason such that this court should not direct a sale of the premises.”
• Laffoy J, obiter, in Irwin v Deasy (at 767), i.e. – Onus is on the defendant to satisfy the court that a good reason exists for not ordering a sale; court should consider whether there are other options more favourable to the defendants
• Same question for partition where plaintiff has produced necessary proof
• Current case – Defendant admitted to being practically insolvent and sale of land would cover debts

Question 15

Yippi Trading Ltd v Costello [2013] (HC)

Answer 15

• Ryan J:
• S31 2009 Act - Discretion and conditions
• Little sense in keeping the parties tied into a legal relationship which does not meet their needs and in which shared ownership of the property is no longer feasible – Allow partition in those circumstances
• Division of the property in question must be feasible in both a practicable and legal sense and have regard to any potential planning permission implications.
• The benefits of severance of common ownership are clarity and simplicity and freedom to control one’s own property without the need for third party consent.
• Don’t allow partition - Business people, contract, practical difficulties

Question 16

Tempeny v Hynes

Question 17

s31 2009 Act

Answer 17

Partition rules